Date: October 7, 2021Attorney: Steven I. Adler

Mandatory COVID-19 Vaccinations at Work Gain Steam; Botched Sexual Misconduct Investigations Involving USA Gymnastics and the National Women’s Soccer League Remind Employers to be Vigilant.

We continue to keep our clients ahead of the curve on important employment law developments, in order to help insulate employers from liability. Events from just the past week or two bring home this point.

Many large employers across the country, including those in private industry and the government, have now advised their staff that they are mandating COVID-19 vaccinations as a condition of returning to work. Taking their lead, many small to midsized employers are considering similar measures. One month ago, we addressed the legality of requiring a vaccine, and predicted that vaccine mandates likely will be upheld in the courts. Of course, mandatory vaccine policies must provide for reasonable accommodations for employees who have disabilities or sincerely held religious beliefs. 

Two other news headlines also merit attention. The first is the resignations of the Commissioner of the National Women’s Soccer League (NWSL) and its general counsel, both women, and the cancellation of NWSL games last weekend due to allegations of sexual misconduct by a team coach. The other headline relates to the Justice Department’s inquiry concerning the FBI’s botched investigation of Larry Nassar, the former team doctor for USA Gymnastics.

What jumps out to employment lawyers is the horrific way these two matters were mishandled. With regard to Nassar, those in power looked the other way when gymnasts began reporting their allegations. Similarly, in the NWSL matter, the commissioner appears to have been notified of the coach’s actions months ago and sat on the information. To make matters even worse, when the Commissioner eventually appointed an organization to investigate, she chose one closely tied to the league that appears to be biased.

There are a number of lessons to be learned from these matters. First, as your employees begin to return to the office after the COVID-19 shutdowns, make sure your policies are clear with regard to vaccination requirements and medical testing. Also, be prepared, and know what you will require from employees who request an accommodation.

As to the matters involving the NWSL and USA Gymnastics, employers should review their anti-harassment and discrimination policies – especially now that there will be more people working together again in the office. Employers also should not delay when notified of an allegation of sexual misconduct or harassment, because the law requires employers to take prompt and effective action to remediate any inappropriate behavior. Finally, employers should retain truly independent counsel to investigate such claims or, if sued, they will have a difficult time in court convincing a jury that they properly fulfilled their duties and should not be held liable.